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Monday, March 9, 2015

Prostitution And Entrapment -- An Argument for the Defense

I recently had a chance to speak with a potential client about solicitation, prostitution, and entrapment. Can a police officer actually have sex with an escort and still threaten that same escort with solicitation and prostitution charges in DC? That answer is a solid maybe. Let's review the facts of this example:

I stay in Washington, DC area. I have been escorting for months off of the website called backpage. I always ask every client to send me two face pics of themselves......ok so let me get into my story. Last month I met a guy from offline. He came over and we had sex and he paid me. I saved all his info in my phone. I never delete text messages. So yesterday this guy calls me to hookup, and as soon as he walks in he identifies himself as a police officer. Mind you, we had sex before and I have his picture in my phone. He shows me a arrest warrant (no other officer enters but him). I hear other officer talking speaking to him on his radio. He also searched my place and then tells me that another officer will call me to give me a citation. So once he leaves an hour later, he calls me and tells me that he spoke to his supervisor and they will not be arresting me. This cop took my phone and deleted evidence of himself to not incriminate himself. And also had sex with me prior to this incident. I feel violated. Can a cop legally do this?

The question asked is whether the police officer engaged in illegal conduct by paying for sex and then trying to charge the escort with prostitution. The governing rule here is entrapment. Entrapment occurs when, an otherwise non-inclined individual is enticed into breaking the law by the actions of the police (or other government agency). The degree of "non-inclined" is a hotly debated topic in defense circles, and there is no clear standard. The Supreme Court has opined in Jacobson v. United States, 503 U.S. 540, 548-49 (1992). Government failed to prove that the defendant was predisposed to purchase child pornography, even though he had become so predisposed following solicitation through an undercover "sting" operation. The holding states that where there is no predisposition to the alleged offense, and the defendant is induced by the actions of the government, the affirmative defense of entrapment shall be available.

A different approach has been discussed by the Supreme Court and varied between acceptance and rejection over the years. This objective approach looks to the conduct of government agents and not the predisposition of the defendant. If the government creates a substantial risk that the person solicited will engage in the proscribed conduct, the defense would be available. Sorrells v. United States, 287 U.S. 435, 458-59 (1932) (separate opinion of Justice Roberts); Sherman v. United States, 356 U.S. 369, 383 (1958) (Justice Frankfurter concurring); United States v. Russell, 411 U.S. 423, 441 (1973) (Justice Stewart dissenting); Hampton v. United States, 425 U.S. 484, 496-97 (1976) (Justice Brennan dissenting).

Those last cases, and more information on entrapment and a review of additional court cases, see Justia 14th Amendment and Entrapment.

In the instant example, most likely this would not constitute entrapment. Because the woman in question was previously engaged in illegal activity, and has indicated a predisposition for this conduct, the police officer would not be engaged in entrapment. Misconduct? Probably. But conduct allowing the defense of entrapment -- not likely. The defense is narrowly tailored and limited -- however, it should always be raised whenever government conduct leads to the charge.

If you have questions about criminal law, entrapment, or sexual crimes, contact us! We specialize in serious criminal matters, family law, and immigration. Let us help you -- 703-402-2723.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC Lili O'connell, Esq.
Abby Archer, Esq.
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 Charles Hatley, Esq.

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